Rajasthan High Court - Jaipur
State Of Rajasthan And Ors. vs Brijendra Singh on 22 March, 2006
Equivalent citations: RLW2006(2)RAJ1621, 2006(3)WLC345
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. The State of Rajasthan has challenged the judgment dated 13.8.1996, whereby the learned Single Judge has directed the State to give emergent temporary appointment to the Respondent on the post of Revenue Inspector in the Municipality.
2. The brief facts of the case are that according to the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 (henceforth to be referred to as "the Rules of 1963", for short) the post of Revenue Inspector is a cadre post. Initially, in 1984, the Department of Local Bodies and Self-Government had advertised about 2000 vacancies for different posts, including the post of Revenue Inspector. However, after receiving the applications, the Department did not fill up the vacancies. Therefore, some of the applicants challenged the omission on the part of the Department in not filling up the vacancies by filing writ petitions before this Court, Eventually, in the case of Ratan Singh v. State of Rajasthan 1990 (1) RLR 512 vide judgment dated 26.4.89, a Division Bench of this Court directed that "different Commissions for different Municipal Boards/Councils throughout the State of Rajasthan will advertise different categories of vacant posts in the subordinate service and if any of the petitioners or any other person who had applied earlier has become overage, the age shall be relaxed by the government up to five years and the State Government is directed to pass necessary orders in that respect. The Commissions shall invite applications and make selections. The Municipal Boards/Councils are directed to send the requisitions to the Commissions and then the Commissions shall invite applications and make selections. The entire process shall be completed within six months. Thereafter, the Commissions shall forward the names of the candidates selected to the different Municipal Boards/Councils and then the appointing authorities will make the appointments within two months thereafter. Thus, in all eight months time is allowed for the entire process." But before this judgment could be implemented, the State Government filed a Review Petition which was decided vide order dated 1.2.90. According to the said Order the benefit of the Judgment dated 26.4.89 was to be confined only to the twenty-two petitioners who had approached the High Court.
3. Subsequently, on 19.1.90, the Department again issued an advertisement, Advertisement No. 1/90, for 1113 vacancies including thirty vacancies for the post of Revenue Inspector. In order to extend the last date for submission of the application, the Department issued another advertisement, Advertisement No. 2/90, whereby the last date was extended up to 17.6.90. However, again after inviting the application the Department did not make any appointment. Hence, again the prospective candidates filed a series of writ petitions, challenging the omission on the part of the Department, In S.B. Civil Writ Petition No. 5695/1992, Ratan Lal v. State of Rajasthan, vide judgment dated 21.5.93, this Court directed that in case the vacancies were available, then the case of the Petitioners should be considered in accordance with law. However, the Department did not implement the directions.
4. Since the Department had neither implemented the directions of the Court, nor filled the vacancies in accordance with the advertisement issued in 1990, the present Respondent filed a writ petition challenging the omission on the part of the Department. In the said writ petition, the Petitioner (the present Respondent before us) prayed for two relieves: firstly, that the Department be directed to complete the selection process. Secondly, the Department be directed to appoint the Petitioner on an emergent temporary basis till the regularly appointed persons are available. Vide judgment dated 26.8.96, the Learned Single Judge has directed the Department to appoint the Petitioner on emergent temporary basis to the said post till regular appointments are made. The State is aggrieved by the direction to appoint the Respondent on emergent temporary basis. Hence, this petition before us.
5. Mr. G.K. Garg, the learned Counsel for the State, has argued that the Respondent had merely applied for the post of Revenue Inspector. Mere application for selection would not clothe him with a right of appointment. The right of appointment is an inchoate right. Therefore, non-appointment to the post would not entitle the Respondent to challenge the omission on the part of the State in not completing the selection process. According to him, the State is not required to complete the selection process if it chooses not to do so in accordance with law. Moreover, "an emergent temporary appointment" is to be made in accordance with Rule 27 of the Rules of 1963. The Learned Single Judge has ignored the said procedure and has straight away directed that the Respondent should be appointed on "emergent temporary basis". Hence, the Learned Single Judge has violated the letter and spirit of Rule 27 of the Rules of 1963.
6. On the other hand, Mr. Man Singh Gupta, the learned Counsel for the Respondent, has vehemently argued that repeatedly the Department had advertised vacancies for different posts and repeatedly it had failed to complete the selection process. Twice this Court had directed the Department to complete the said process, but the Department did not pay any heed to the said directions. Instead of regularly appointing the persons, the Department appoints people only on "an emergent temporary basis" and keeps them employed for a long time. After a long time, these people are regularized. Hence, people are being given a "back door entry" into the service. He has supported the impugned judgment.
7. We have heard the learned Counsels for the parties and have perused the impugned judgment.
8. The Rules of 1963 prescribe the procedure for appointment to the cadre post. Rule 8 prescribes the method of recruitment as under: -
8. Methods of recruitment: Vacancies after the commencement of these rules shall be filled: -
(i) By appointment in the lowest grade of each category.
(ii) By promotion from the lower to a higher grade in the same category.
(iii) By transfer of persons holding corresponding posts under a Board.
(iv) By taking an official on deputation from the State Government.
The ratio of filling up the vacancies by direct recruitment and promotion shall be 50:50, unless otherwise provided.
9. Rule 10 states that "subject to the provisions of these rules and direction of the State Government the Executive Officer shall determine at the commencement of each year the number of vacancies anticipated under each grade under different categories during the course of the year and the number of persons likely to be recruited". Part IV lays down the procedure for direct recruitment. Rule 17 imposes a duty on the Executive Officer to submit, at the beginning of every year, a statement of vacancies under each grade under different categories likely to fall vacant to the Director. According to Rule 18, a consolidated list of vacancies shall be prepared. Rule 19 prescribes that on receipt of a requisition for direct recruitment to the service, applications shall be invited by the Commission in such manner as they deem fit. Rule 21 prescribes the scrutiny of the applications. Rule 22 casts a duty on the Commission to prepare a board-wise list of candidates for considering suitable persons for appointment and thereafter, the appointments are to be made. Rule 27 does permit the appointment on emergent and temporary basis in the following words: -
27. Emergent Temporary appointments - (1) A vacancy in the service may be filled temporarily by the appointing authority by appointing thereto a person eligible for direct recruitment under the rules or by temporarily promoting thereto a person holding the next lower post and possessing the requisite qualifications :
Provided that no such temporary appointment either by promotion or by direct recruitment shall be continued beyond a period of one year without referring to the Promotion Board, in case of promotion and to the Commission in the case of direct recruitment for their concurrence and on their refusal to concur, such appointment shall be terminated immediately.
Provided further that until selected candidates are made available by the Commission, the term may be extended by the Director from time to time.
(2) In case the vacancy under Sub-rule (1) is proposed to be filled in by direct recruitment, the same shall be notified to the nearest Employment Exchange which shall be asked to send a panel of names of persons possessing the requisite qualifications, consisting at least 5 times the number of the vacancies to be filled. Besides this an employee of the Municipal Board/Council possessing the requisite qualification will also be eligible to apply for such vacancy subject to the age restrictions provided in Rule 12. Such appointment will also be considered for appointment alongwith the list of candidates recommended from the Employment Exchange. The appointing authority shall then appoint suitable candidates to the posts from amongst the candidates whose names appear in the panel of names sent by the Employment Exchange and also from the list of applicants who are Municipal Exployees.
10. Thus, the Rules of 1963 provide an elaborate procedure for filling up of the post by direct recruitment. They further cast a duty on the Executive Officer to determine vacancies year-wise, to prepare a consolidated list board-wise, to advertise the said vacancies and follow the procedure for appointment by direct recruitment. A bare perusal of Rule 27 of the Rules of 1963 would reveal that with a prior approval of the Director, the appointing authority may appoint a person eligible for direct recruitment on a temporary basis, but such an appointment shall not continue beyond the period of one year without referring his case to the Commission. In case, the Commission refuses to concur, then such an appointment can be terminated immediately. The second proviso has to be read in consonance with the first one. The second proviso empowering the Director to extend the term of appointment from time to time till duly selected candidates are made available, has to be subjected to the first proviso. Therefore, the term can only be extended after seeking the concurrence from the Commission in case of direct recruitment. The second proviso, therefore, cannot be used as a clever ploy to appoint a person on a temporary basis and to continue his service for an indefinite period of time. In case, the second proviso is used as a subterfuge to continue employee for a long time, it would defeat the procedure for direct recruitment as contained in Part IV of the Rules of 1963. Hence, the State should not use this limited power to ensure unlimited tenure of appointment. For, such exceptional power cannot override the normal procedure of appointment by direct recruitment.
11. It is a settled principle of law that the State cannot be compelled to fill up the vacancies. However, in the case of Shankarsan Dash v. Union of India , the Constitution Bench of the Hon'ble Supreme Court held that "even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicated, the State is under to legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons." In the instant case, the respondent had alleged that the State left the selection process incomplete without any bona fide basis. In its reply, the State has not given any reason for not completing the selection process. Even when the respondent had given instances of persons who were appointed under Rule 27, the State has not denied the same. Hence, the State has failed to explain to the Court the reasons for not filling up the vacancies for which the advertisement was issued in 1990. It is also essential to note that Advertisement Nos. 1/90 and 2/90 were issued in pursuance of the directions given by this Court. Despite the clear directions issued by this Court, the State left the selection process incomplete without any cogent reason,
12. However, in catena of cases the Hon'ble Supreme Court has held that mere participation in the selection process does not bestow a right of appointment on a person to the said post, (refer to Shankarsan Dash (supra), Union of India and Ors. v. K.V. Vijeesh (1996) 3 SCC 136, State of Orissa and Ors. v. Bhikari Charan Khuntia and Ors. , Punjab State Electricity Board and Ors. v. Malkiat Singh : RLW 2005(1) SC 63 At best the person has a right of consideration for the said post. Therefore, the Court cannot direct that a person be appointed for a particular post. It can merely direct that person's case should be considered for the said post in accordance with the law. Therefore, on two earlier occasions, this Court, in the case of Ratan Sing (supra) and in the case of Ratan Lal (supra), had directed the appellant to consider the case of a person who had applied in pursuance of the advertisement issued by the Department, However, in the present case, the learned Single Judge has not directed the Department to consider the respondent's case in accordance with law. Instead, the learned Single Judge has directed the appellant to appoint the respondent on "emergent temporary basts" till the regularly selected candidates are available. Such a direction is unsustainable in the eyes of law. Therefore, the appeal is allowed and the judgment dated 13.8.1996 is quashed and set aside.
13. But, as mentioned above, twice this Court had directed the State to fill up the vacancies by following the process of regular selection. The State had made certain customary gestures, but without completing the process. We would again like to direct the State to henceforth determine the year-wise vacancies in accordance with Rules 10 and 17 of the Rules of 1963 and to fill up the vacancies in accordance with Part IV of the Rules of 1963. But for exceptional circumstances, the limited power under Rule 27 should not be resorted to in order to avoid making regular selection. The State is not only a model employer, it is also supposed to encourage merit. By resorting to Rule 27 of the Rules of 1963, the State is encouraging mediocrity. It is also exploiting the temporary employees. A welfare State cannot afford to exploit its employees. Once a procedure is established, the State is legally bound to follow it. Hence, the State is expected to implement Part III and Part IV of the Rules of 1963, both in letter and spirit, for filling up the vacancies.
14. With these observations, this appeal is allowed.